Muthuswami Goundan vs Palani Goundan and Others

Wallace, J.—These two appeals are from judgments in connected suits. The facts necessary for the disposal of those appeals are as follows:

One Palani Goundan was the father of one Kavundai Goundan who is the -5th defendant in O.S. Nos. 559 of 1921. His sons are defendants Nos.

6 to 8. Fifth defendant sold certain family property under Ex. B to defendants Nos. 1-4, who, in their turn, sold it to the plaintiff under Ex. C. The

sale covered 8 items. Plaintiff claimed that they were all the 5th defendant''s properties at the time of the sale by him to defendants Nos. 1-4, that

the 5th defendant had separated from his family and had got items Nos. 1-4 and 8 for his share and that as regards Nos. 5,6 and 7 they were his

self-acquisition. The contest in the suits ranged round the question whether Palani Goundan was still joint with the 5th defendant and his sons, and

whether items Nos. 5, 6 and 7 were the self-acquisitions of the5th defendant. The lower Appellate Court has decided that there was no partition

between Palani Goundan and his sons and that items Nos. 5, 6 and 7 are part of the joint family property. These findings must be accepted in

second appeal.

The connected suit was by Palani Goundan to declare that the sales of joint family property under Exs. B and C did not bind him, and the

judgment in that suit followed the judgment in the other.

In this Court the appellant in both appeals is the same, namely, the purchase under Ex. C. In both suits Koundai Goundan the vendor under Ex.

B remained ex parte. The contention here is that the lower Appellate Court ought not to have dismissed the appellant''s claim in toto but should

have held that the transfer of Koundai Goundan''s own share in the joint family property to him was valid, it not having been contested by Koundai

Goundan himself, that the other members of the joint family have no right to question that transfer, and that the lower Appellate Court ought,

therefore, to have given the plaintiff a decree that the transfer of that share to him was valid and binding on the rest of the joint family.

Both the lower Courts concur that the sale under Ex. B by 5th defendant to defendants Nos. 1-4 was a nominal transaction. The lower

Appellate Court held that the plaintiff also paid no consideration under Ex. C, the first Court held that the sale under Ex. C was for a grossly

inadequate consideration but did not give a finding that it was nominal. The plea that these sales were nominal was, of course, not taken by

Koundai Goundan himself since he was ex parte, but they were taken by the other members of the joint family.

The general point for consideration is whether, when a member of a joint Hindu family has purported to sell his share to a stranger and does not

himself plead that the transfer was not a sale or that it was for no consideration, it is open to the other members of the family to put forward such

pleas and prove that there was no sale or no consideration for the sale, and thus retain that property for the members of the joint family, including

the member who professed to sell it?

The right of a co-parcener of a joint family to sell his share is admitted by the law in, this Presidency but it is not an unrestricted right. It is

restricted to a right to sell for valuable consideration. He is not allowed to make a gift of it. This law is founded on a rule of equity whereby a

purchaser for value is to be allowed to stand in his vendor''s shoes: Suraj Bunsi Koer v. Sheo Persad Singh 5 C. 118 : 6 I.A. 88 : 4 Sar. P.C.J. 1 :

3 Suth. P.C.J. 589 : 4 C.L.R. 226 : 2 Shome L.R. 242 : 2 Ind. Dec. 705 Privy Council decision and the Madras Full Bench Aiyyagari

Venkataramayya v. Aiyyagari Ramayya 25 M. 690. It follows from this, I think, that the mere assertion by an alienating co-parcener that, he has

sold his share for valuable consideration is not conclusion of that fact. Otherwise, he might easily evade the law by styling as a sale what was in fact

a gift. The fact that the sale is valid only if it is for valuable consideration carries with it as a corollary that the sale must be a real genuine sale, and

that mere word of the alienor is not the deciding factor on that point; Rottala Runganatham Chetty v. Pulicat Ramasami Chetti 27 M. 162 The

Privy Council decision in Achal Ram v. Kazin Hasain Khan 27 A. 271 : 15 M.L.J. 197 : 8 Sar. P.C.J. 772 : 9 C.W.N. 477 : 8 O.C. 155 : 32 I.A.

113 has been cited by the appellant, but a study of that case shows that the challenge to the sale-deed which was repelled by the Privy Council did

not come from the co-parcener of the alienor at all, so that the case does not help. The ruling in Vadivalam Pillai Vs. Natasam Pillai, does not, in

my opinion, carry the general principle any further. It in fact re-iterates the proposition that such sales are only binding when they are for valuable

consideration.

It follows that it is open to the other members to aver and prove that an alienation by a co-parcener was not a sale for valuable consideration

but was to all intents and purposes a gift. I think, therefore, that in spite of the fact that the 5th defendant did not himself challenge Ex. B. it was

open to the other members of the joint family to do so, and that if they were able to prove, as they have proved, to the satisfaction of the Court

which is the final arbiter on this question of fact, that the sale Ex. B, was nominal, that sale must be held to be wholly nominal and will hot suffice to

transfer even the share of the alienor himself. The sale, therefore, by the 5th defendant was not a sale for valuable consideration and, therefore,

cannot be given any effect over joint family property. I can, therefore, see no reason to interfere and dismiss both these appeals with costs.

Note. This judgment does not direct, and is not intended to direct whether the plaintiff is entitled to a charge on the property to the extent of Rs.

1,001 said to have been paid by him towards the mortgage-decree. As the alleged payment was made after the suit was filed; the matter cannot

properly be disposed of in the suit. Plaintiff is at liberty to take such action as he is advised to do, to establish this claim.